State v. McMurtrey

• Decision Date: 11 September 1986
• Docket Number: No. 5409-3,5409-3
• Citation: 726 P.2d 202,151 Ariz. 105
• Parties: STATE of Arizona, Appellee, v. Jasper Newton McMURTREY III, Appellant.
• Court: Arizona Supreme Court

Page 202

726 P.2d 202

151 Ariz. 105

STATE of Arizona, Appellee, v. Jasper Newton McMURTREY III, Appellant.

No. 5409-3.

Supreme Court of Arizona,

In Banc.

Sept. 11, 1986.

Robert K. Corbin, Atty. Gen., by William J. Schafer III and Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee.

Polis & Sadaca by Bertram Polis, Tucson, for appellant.

CAMERON, Justice.

This is an appeal from the reimposition of the death penalty on the defendant, Jasper Newton McMurtrey III, for his two first-degree murder convictions. A.R.S. §§ 13-703, -1105. We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031, -4035.

The issues that must be decided are:

1. Was the trial judge so prejudiced, from having sentenced defendant to death twice before, that he could not fairly conduct a third sentencing?

2. Was the death penalty properly imposed?

3. Is imposition of the death penalty, in this case, cruel and unusual punishment in violation of defendant's constitutional rights?

This is the third time this case has come before us. The facts are set out in State v. McMurtrey, 136 Ariz. 93, 664 P.2d 637, cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983). In that appeal, we affirmed defendant's conviction and sentence for attempted first-degree murder and also affirmed his convictions on two counts of first-degree murder. However, we remanded for resentencing on the first-degree murder convictions as it appeared the trial judge did not sufficiently consider the evidence offered in mitigation. Id. at 102, 664 P.2d at 646.

Upon remand, defendant was again sentenced to death on both murder convictions. This court again set aside defendant's death sentences. State v. McMurtrey, 143 Ariz. 71, 691 P.2d 1099 (1984). We found that the trial judge improperly required defendant to prove intoxication as a mitigating circumstance beyond a reasonable doubt instead of by a preponderance of the evidence. Id. At the resentencing hearing, it was agreed that the court could consider evidence presented at the first two presentence hearings as well as any new evidence. The defendant's attorney stated:

MR. POLIS: Yes.

I would ask the Court, of course, you've heard evidence before and I don't think it is necessary to repeat that evidence so I have not called all the witnesses that were previously called in the prior two sentencings. It is clearly in the record, you clearly heard it and clearly considered it and I would just--

THE COURT:

* * *

* * * I'm willing to listen to any evidence and you can repeat, you can bring in new evidence, you can cover any subject you want in this case.

MR. POLIS: Your Honor, I would ask you to consider the evidence I'm going to present today in light of the evidence I presented in the past.

The trial court, after the aggravation/mitigation hearing, reimposed the death sentence. Defendant appeals.

I. WAS THE TRIAL COURT PREJUDICED?

Upon remand for a third sentencing, defendant sought to have the trial judge removed. On 29 March 1985, defendant moved for a change of judge pursuant to Rule 10.2, Ariz.R.Crim.P., 17 A.R.S.. This motion was denied by the trial judge, Judge Arnold. ¹ Subsequently, defendant filed a second motion for change of judge pursuant to Rule 10.1, Ariz.R.Crim.P., 17 A.R.S.. This motion was denied by Judge Hawkins, the presiding judge. Defendant argues that it is unreasonable to believe that Judge Arnold had no interest or bias in this case as a result of his previously having sentenced defendant to death twice. He claims that the judge was predisposed to again impose the death sentence.

As evidence of this predisposition, defendant offers the following statement by the trial judge during the testimony of the first witness at the mitigation hearing:

BY MR. PEASLEY:

Q. Did Mr. McMurtrey rank high on habitual criminalism test that you administered to him?

A. Yes, he did.

Q. And that would be part of the MMPI or TAT?

A. That is part of the MMPI.

Q. And that suggests, does it not, that there is a high tendency on Mr. McMurtrey's part to continue his present life style or life style that he engaged in?

MR. POLIS: I will object to that.

THE COURT: His present life style, he might have a hard time continuing that.

(Emphasis added).

We do not find the isolated comment of the trial judge, relied upon by defendant, to be sufficient evidence of prejudice so as to require a change of judge. Id.; see also State v. Knapp, 125 Ariz. 503, 504-05, 611 P.2d 90, 91-92 (1979). Based on the record, it appears the trial judge was not predisposed toward the death sentence but instead acted very conscientiously.

THE COURT:

This is my only death case since I've been on the Bench in ten years and it is not something that anyone approaches lightly. I've lost a lot of sleep over this case just thinking about it. I consider myself a man of conscience and really, when it comes right down to it, I'm like Dr. Sullivan there. I'm not so sure I really believe in the death penalty, but when I was sworn in here, I took an oath. I said I would uphold the Constitution of the State of Arizona and the laws of the State of Arizona.

That is my duty, nothing personal in it, Mr. McMurtrey.

* * *

* * *

[I]f I had a personal, if I could just say "Look, I don't want it on my conscience.... I don't want to lose anymore sleep." Now I've lost eight hours sleep at night sometimes thinking about you.

* * *

* * *

I wouldn't put you in the death house unless the law said so and you qualify, Mr. McMurtrey. And you just qualify for the death penalty. That is it, plain and simple.

The defendant has not carried his burden of proving bias or prejudice on behalf of the judge so as to require his removal. State v. Jeffers, 135 Ariz. 404, 427, 661 P.2d 1105, 1128, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983). Further, we find nothing inherently unreasonable in the trial judge resentencing defendant absent specific evidence that the judge was actually biased or prejudiced against him. State v. Richmond, 136 Ariz. 312, 317, 666 P.2d 57, 62, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983). We find no error.

II. IMPOSITION OF THE DEATH PENALTY

In reviewing the imposition of the death penalty, this court is required to examine the record independently and determine the existence or non-existence of both aggravating and mitigating circumstances. State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).

A. Aggravating Circumstances

Defendant claims the trial court erred in finding the aggravating circumstance contained in A.R.S. § 13-703(F)(3), that in committing the murders defendant "knowingly created a grave risk of death to another person or persons in addition to the victim of the offense." Defendant bases his argument on the fact that he "deliberately aimed at and shot only his intended victims and no other persons were injured."

Defendant made this same argument in his original appeal. At that time, we stated:

The court found under A.R.S. § 13-703(F)(3), that in committing these murders appellant knowingly created a grave risk of death to persons other than the victims. We agree. The evidence at the trial established that the Ranch House Bar was crowded the night of the killings and that there were from five to nine other people in the immediate area of the victims when they were shot. When he emptied his gun at the victims, appellant created a grave risk to those other people. State v. Blazak, 131 Ariz. 598, 643 P.2d 694 (1982); State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977).

State v. McMurtrey, 136 Ariz. at 101, 664 P.2d at 645.

Reviewing the record once again, we note in addition two other factual details of the crime. First, there is evidence defendant shot one of the victims for a second time after the victim pleaded with him to stop. Second, after shooting the three victims, defendant pointed the gun at a woman and pulled the trigger, only the gun clicked empty. Based on all the facts, we find this aggravating circumstance.

Defendant claims, in the alternative, that this aggravating circumstance is unconstitutionally arbitrary and overbroad. We disagree. This aggravating circumstance may be found only where others are physically present in the zone of danger. State v. Doss, supra. It may not be found where they are in another room, State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); or intended victims, State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985); State v. McCall, 139 Ariz. 147, 677 P.2d 920 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984). The aggravating circumstance is sufficiently precise to avoid its arbitrary application.

B. Mitigating Circumstances

A.R.S. § 13-703(G)(1) provides that it shall be considered a mitigating circumstance if:

The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.

Defendant argues that he has shown this mitigating circumstance, based on his mental condition and intoxication, to a sufficiently The evidence concerning both defendant's mental state and his level of intoxication is conflicting. Concerning defendant's mental state, there was expansive testimony both at trial and at defendant's three aggravation/mitigation hearings. Defense experts at trial were Dr. Santiago and Dr. Gurland. Dr. Santiago testified that defendant suffered primarily from a major depressive disorder and secondly, from an antisocial personality. He also stated that defendant was impulsive and would have trouble controlling his emotions under stress. Dr. Santiago, however, was unable to give an opinion as to defendant's mental state at the time of the...